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Since When Are Condoms Illegal?

By Melissa Ditmor, Angela Torregoza, and Andrew Silapaswan

Summer 2011

Condoms Save Lives

Men who have sex with men (MSM) and sex workers are among the most vulnerable to HIV. To combat this, prevention programs have focused on encouraging condom use to help prevent transmission. Prisoners need them, since the reality of prison life often includes sexual activity. Sex workers need easy access to condoms and other safer sex supplies, and the ability to carry and use them without fear of arrest or violence.

Yet there are laws in the U.S. that make it difficult for people to protect themselves, especially people who interact with the criminal justice system. The lack of condoms in prisons and laws that use condoms as evidence of prostitution are examples of these policies. These laws increase the likelihood of HIV transmission both in and out of prisons. Plus, they single out certain groups as "unworthy" of protection, and make everyone less safe. But activists are fighting back to secure their rights and to help prevent the transmission of HIV.


Condoms in Prisons and Jails

Condoms are currently illegal in most of the country's jails and prisons, even though there is an increasing need to protect the health and well-being of inmates. The lack of condoms is a big problem because prisoners are highly vulnerable to HIV, hepatitis B virus (HBV), hepatitis C virus (HCV), and other infectious diseases. In 2008 alone, 1.5% of all U.S. prisoners had HIV, four times higher than the rate in the general population.

The high rate of sexual assault in prisons fuels calls for condoms to be made available. According to the Bureau of Justice Statistics, 60,500 inmates experienced at least one incident of sexual assault by other inmates or staff in 2007. Studies show that sex workers, LGBT people, and inmates who are smaller framed are at greatest risk of sexual assault. In the context of prison rape, a lack of condoms places inmates at increased risk of HIV and other STIs.

Despite the occurrence of high-risk sexual activity, rape, and the risk of STIs, only five county jail systems (New York, Philadelphia, San Francisco, Los Angeles, and Washington, D.C.) and two state prison systems (Vermont and Mississippi) allow inmates access to condoms. This represents less than 1% of all U.S. prisons. Increasing condom availability in the prison system will go a long way toward protecting inmates.

The success of current programs that offer condoms to prisoners proves how helpful that can be. The Central Detention Facility of Washington, D.C., began providing condoms to prisoners in 1993. Each month condoms are provided through public health and AIDS service organizations. Condoms are available at health education classes, during voluntary HIV test counseling, or upon request to health care staff. Since condoms were made available, 55% of inmates and 64% of correctional officers support the measure. Only 13% of correctional officers are aware of any problems with condom availability, but details about these issues have not been provided. Likewise, no security issues have been reported relating to condom availability and there is no evidence that sexual activity has increased.

Although a majority supports making condoms available in prisons, 89% of inmates have not requested them. Also, 65% of those who have received condoms never used them. These results suggest that although condoms are available when a prisoner is able to request them, not many condoms are distributed throughout the prison. A possible explanation for this is that inmates are unwilling to request condoms because this would also be an admission that he or she is engaging in sexual activity. Policy makers should take this into consideration when creating new HIV prevention policies.

The U.S. can look to Canada as an example, since condoms have been available in Canadian prisons since 1992. Like the Washington Detention facility, condoms were initially available only through health care providers in the prisons. Many inmates reported that they would be more likely to access condoms if they were made available apart from health services. In response, condoms have been made available since 1994 in areas where inmates are not seen by staff or other inmates. Condoms are placed in bowls and other containers in sites such as washrooms, shower areas, and libraries. The introduction of condoms in Canadian prisons has met with much success, and no facility that has made condoms available has reversed the policy.


The Fight Continues

Sex Workers Project

Often those who oppose providing condoms to prisoners argue that it supports homosexual activity, which conflicts with their religious, cultural, or moral beliefs. Others fear it will increase sexual activity, fights, drug trafficking, and rape. Studies show, however, there is no evidence that security threats, prison rape, or sexual activity increase with access to condoms.

Those against allowing condoms in prisons argue that since sexual activity is illegal in prisons, condoms should not be offered. But, as is widely known, sexual activity is common in prisons. Moral judgments about sexual activity must not direct public health policy. Condoms are a proven prevention tool against HIV and are necessary to protect the health of inmates.

Unfortunately, efforts to change policies regarding condoms in prisons have met challenges at the state and federal levels. In California, bills that would allow condoms in prisons were passed in 2005 and in 2007, but both times were vetoed by Governor Schwarzenegger. Senator Velmanette Montgomery sponsored a bill in the New York Senate in 2011 that would require prisons to provide condoms. The bill has yet to come to a vote. On the federal level, the Justice Act was introduced by Barbara Lee (see Anti-HIV Criminalization Bill Introduced), including this language:

Not later than 30 days after the date of enactment of this Act, the Attorney General shall direct the Bureau of Prisons to allow community organizations to distribute sexual barrier protection devices and to engage in STI counseling and STI prevention education in Federal correctional facilities.

Activists continue to fight, and there are opportunities for people to take action. The World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have called for access to condoms in prisons and jails as part of an HIV prevention strategy. The AIDS Coalition to Unleash Power (ACT UP) has also consistently advocated for HIV care reform and condom availability in prisons. ACT UP staged a demonstration at the Harlem State Office Building in 2004, and since then other demonstrations have gained momentum. These types of advocacy efforts can be replicated and demonstrate the potential for community members to get involved and to advocate for policy reform.


Condoms as Evidence of Prostitution

In New York State there are additional barriers that limit access to safer sex supplies, particularly the fact that the law allows police to seize condoms as evidence during a prostitution arrest. Lawyers can use these condoms in court to "prove" the guilt of the individual arrested. Many are unaware that there are similar laws in most states.

In New York City, many sex workers report being harassed and arrested merely for carrying condoms. Many sex workers share a misunderstanding that it is a crime to carry a certain number of condoms. As a result, sex workers may avoid carrying any, meaning they cannot protect themselves or their partners. Transgender women in particular are afraid to carry condoms because they are frequently subject to police profiling and arrested as prostitutes even if they are not. This causes great harm and is a misuse of limited government resources.

False arrests, especially those resulting from illegal searches, cost taxpayers. This practice is not in line with the NYC Department of Health's public health efforts, which distribute thousands of free condoms a year. Even some legal businesses are worried that if they provide city-sponsored free condoms, they can be viewed as houses of prostitution and shut down. Thus this practice harms prevention efforts, and many see it as a human rights and civil liberties issue.

Fortunately, these issues have been noticed by state legislators. Senator Velmanette Montgomery and Assemblymember Barbara Clark co-sponsored a bill that would prohibit condoms from being used as evidence of prostitution. The bill also requires police officers to be instructed about this change in the law. Since most prostitution cases do not go to trial, this education is important to ensure the law is effective.

Sex workers have rallied around the bill and are fighting back against this unjust practice. Sex Work Awareness and the Sex Workers Project have hosted lobbying trainings, and sex workers and allies have met with lawmakers to tell them the police should never use as "evidence" the very tools sex workers need to keep themselves and their sexual partners safe. HIV prevention organizations, civil rights organizations, and medical providers have come out in support of the bill. Even the NYC Council has introduced a resolution in support. These groups have sent a strong message that the current law is not helpful in preventing new HIV infections.


Conclusion

Studies show that making sex work illegal is generally harmful to public health efforts to prevent the spread of HIV and other STIs. These kinds of barriers to HIV prevention only make the problem worse. In spite of their fear of arrest, sex workers report that they continue to carry condoms to the best of their ability because health and protection come first. Encouraging safer sex practices among sex workers will result in health benefits and empower workers to make positive choices regarding their health, safety, and well-being.

The policies that allow condoms to be used as evidence of prostitution and the lack of condoms in prisons seriously hinder HIV prevention. Not only do they violate individuals' rights to protect themselves, they directly increase the risk of HIV transmission both in and out of the prison system. Moving forward, the HIV prevention and treatment community and our elected officials must continue to advocate for condom availability and encourage condom use.

Melissa Ditmore is a research consultant and Angela Torregoza is a policy intern at the Sex Workers Project at the Urban Justice Center. Andrew Silapaswan is a public policy intern at GMHC.




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